United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
before the Court is Defendant's Amended Motion to Dismiss
(ECF No. 10) filed by Defendants Jimmy Harmer
(“Harmer”), Tommy Blitsch
(“Blitsch”), Jennifer Dodds
(“Dodds”), Yvonne Andrade
(“Andrade”), Camilla Grantinetti
(“Grantinetti”), Laura Sims (“Sims”)
(collectively, “Individual Defendants”),
Teamsters Union Local 631 (the “Union”)
(collectively, “Defendants”). Pro se Plaintiff
Tadaryl Williams (“Plaintiff”) filed a Response
(ECF No. 17), and Defendants filed an Amended Reply (ECF No.
action arises from an alleged preclusion of Plaintiff from
rejoining the Union. (Compl. at 4, ECF No. 1). Plaintiff
alleges that the Union and its various employees-the
Individual Defendants-prevented him from being
“reinstated as a Supplemental worker . . . and denied
[him] re-entry into the Union.” (Id.). The
Individual Defendants are allegedly employees, business
agents, and officers of the Union, and the Union is a
private-sector labor union representing convention industry
workers in the Las Vegas area. (See Id. at 2-3).
Plaintiff asserts five counts of First and Fourteenth
Amendment violations relating to the Union's failure to
reinstate him in 2015, after an “honorable
withdrawal” in 2002. (See Id. at 5- 9).
Plaintiff also asserts one count of breach of fiduciary duty
because Defendants did not reinstate him to the correct job
classification, which caused him to receive a lower wage than
he was entitled under a previous collective bargaining
agreement in effect from the years 2001- 2004. (Id.
at 8). Plaintiff further alleges that Defendants
“failed to provide fair representation, ” which
appears to assert a claim for unfair business practices.
(Id.). Plaintiff alleges that he sought relief from
the National Labor Relations Board (“NLRB”) for
these grievances, but he does not allege any final
determination. (Id. at 11). Furthermore, Plaintiff
does not allege that he exhausted any other administrative
remedies prior to filing this suit.
seeks to invoke the Court's jurisdiction for these claims
under the following statutes: 28 U.S.C. § 1343(a)(3); 42
U.S.C. § 1983; 18 U.S.C. § 371; Title VII of the
Equal Employment Opportunities Act (“Title VII”),
42 U.S.C. § 2000e; Labor Management Relations Act
(“LMRA”) § 301, codified at 29 U.S.C. §
185; and the Federal Arbitration Act (“FAA”), 9
U.S.C. § 2, 4.
Motion to Dismiss asserts that the Complaint should be
dismissed for the following reasons: (1) the Court lacks
subject matter jurisdiction because all alleged sources of
jurisdiction are inappropriate; (2) even if subject matter
jurisdiction could be established, the statute of limitations
for these claims has expired; and (3) the failure to properly
serve Defendants has resulted in a lack of personal
jurisdiction over all Defendants. (Am. Mot. to Dismiss
2:23-26, ECF No. 10).
12(b)(1) of the Federal Rules of Civil Procedure
(“FRCP” or “Rules”) permits motions
to dismiss for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). When subject matter jurisdiction is
challenged, the burden of proof is placed on the party
asserting that jurisdiction exists. Scott v.
Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding
that “[t]he party seeking to invoke the court's
jurisdiction bears the burden of establishing that
jurisdiction exists”). Accordingly, the court will
presume lack of subject matter jurisdiction until the
plaintiff proves otherwise in response to the motion to
dismiss. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994).
motion to dismiss under Rule 12(b)(1) may be construed in one
of two ways. Thornhill Publ'g Co., Inc. v. Gen. Tel.
& Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). It
may be described as “facial, ” meaning that it
attacks the sufficiency of the allegations to support subject
matter jurisdiction. Id. Alternatively, it may be
described as “factual, ” meaning that it
“attack[s] the existence of subject matter jurisdiction
in fact.” Id. When considering a
“facial” attack made pursuant to Rule 12(b)(1),
as here, a court must consider the allegations of the
complaint to be true and construe them in the light most
favorable to the plaintiff. Love v. United States,
915 F.2d 1242, 1245 (9th Cir. 1989).
challenge to the form of process, rather than the manner of
its service, is properly raised under FRCP 12(b)(4). See,
e.g., Wasson v. Riverside County, 237 F.R.D.
423, 424 (C.D. Cal. 2006) (citations omitted). A Rule
12(b)(4) motion challenges noncompliance with the provisions
of Rule 4 or any applicable provision incorporated by Rule
4(b) that deals specifically with the content of a summons.
Id. Under Rule 4, a summons must:
(A) name the court and the parties; (B) be directed to the
defendant; (C) state the name and address of the
plaintiff's attorney or-if unrepresented-of the
plaintiff; (D) state the time within which the defendant must
appear and defend; (E) notify the defendant that a failure to
appear and defend will result in a default judgment against
the defendant for the relief demanded in the complaint; (F)
be signed by the clerk; and (G) bear the court's seal.
Fed. R. Civ. P. 4(a). Further this Rule requires that
“[a] summons must be served with a copy of the
complaint.” Fed.R.Civ.P. 4(c)(1).
federal court does not have jurisdiction over a defendant
unless the defendant has been served properly under
Fed.R.Civ.P. 4. Direct Mail Specialists, Inc. v. Eclat
Computerized Tech., Inc., 840 F.2d 685, 688 (9th Cir.
1988). Rule 12(b)(5) authorizes a defendant to move for
dismissal due to insufficient service of process. The
plaintiff has the burden of demonstrating that service of
process was valid. R. Griggs Grp. Ltd. v. Filanto
Spa, 920 F.Supp. 1100, 1102 (D. Nev. 1996). If service
of process is insufficient, the court has discretion to
dismiss an action or to simply quash service. See
Fed. R. Civ. P. 4(m); SHJ v. Issaquah School Dist. No.
411, 470 F.3d 1288, 1293 (9th Cir. 2006); Filanto
Spa, 920 F.Supp. at 1102. Actual notice of a lawsuit